Law and Economics Commons^™

Law And The Self-Coordinating Market Idea, Sanjukta Paul

Articles

Much of the focus of the live Symposium was on comparing existing scholarship associated with two intellectual communities. I have no objection to that enterprise in the abstract, though I think it is a bit premature where law and political economy (LPE) is concerned and sets up an apples-to-oranges comparison to the decades-old streams of work and thinking in law and economics (L&E). But I would rather use the privilege of the space in this written Symposium to sketch what I believe is the ultimate substantive nub of contestation in this conversation about the core subject matter of “the economy” …

Inequality As Market Failure, Erick J. Sam

William & Mary Bill of Rights Journal

This Article explores economic, philosophical, and legal relationships between economic inequality and market failure, and it draws on these linkages to develop an innovative normative justification and alternative constitutional basis for a levy on wealth.

The Article’s central analytic result is that several general mechanisms responsible for common market failures can also systematically produce economic inequalities whenever preferences against extreme inequality are fairly widespread. Because these mechanisms satisfy both the ‘process-based’ and ‘outcome-based’ criteria of market failure, redistributive transfers designed to reduce these inequalities would be normatively justified under the widely accepted market failure theory of government action. On this …

Does Law Constitute Society?, Jeremy K. Kessler

Faculty Scholarship

The resistance of capitalist inequality to legal reform has led a growing number of scholars to reconsider the explanatory virtues of Marxist legal thought. But what are those virtues? Some scholars hold that what makes Marxist legal thought special is its ability to explain the development of legal relationships in terms of the development of extra-legal relationships — specifically, the relations of production as they adapt to changes in the productive forces. Other scholars argue that this focus on the causal process by which extra-legal change (or stasis) drives legal change (or stasis) is too reductive. They contend that Marxist …

1981, Carliss N. Chatman

Faculty Journal Articles and Book Chapters

42 U.S.C. § 1981 should have solved a pervasive problem in American capitalism—when white economic interests do not converge with the contract rights of Black people, they are excluded from the market in a way that causes systemic harm. This Article proposes that the failure to enforce 1981 in the past may render it more harmful than beneficial in the present climate of retrenchment. The realities of racism combine with the lack of economic interest convergence to make combatting contract inequality on a contract-by-contract basis legally precarious, nearly impossible to properly evaluate, and difficult to economically incentivize. This is in …

Assembly-Line Public Defense, David S. Abrams, Priyanka Goonetilleke

Faculty Scholarship

Each year, millions of Americans rely on public defenders to fulfill their Sixth Amendment right to counsel. Despite being the linchpin of the criminal justice system, public defense remains both underfunded and understudied. This Article provides empirical analysis to contribute to a critical question: How should public defender systems be structured?

Criminal justice advocates, scholars, and the American Bar Association strongly favor vertical representation in public defense. Under this model, a single public defender represents a defendant throughout their case, from their initial appearance through sentencing. The alternative approach—horizontal representation—operates like an assembly line: Different attorneys handle each stage of …

What On Earth Is A Burden On Interstate Commerce?, Andrew Jordan

Northwestern University Law Review

What is a burden on interstate commerce? That’s an important question under the Dormant Commerce Clause’s Pike balancing test. But it’s a question whose answer has proven elusive. This shouldn’t be a surprise. After all, states disagree about what counts as a burden or a benefit, and how much weight each has. And there aren’t any obvious constitutional principles we can point to for resolving those disagreements. Recently, some scholars have tried to ground dormant commerce doctrine in economic cost–benefit analysis. The supposed virtue of that approach is that it is neutral as to competing preferences. Thus, for the Court …

High-Tech Industries' Global Resource Utilization And Transaction Cost Economics, Bei Johnson

Akron Law Review

No abstract provided.

On Simple Competition Policy, Keith N. Hylton

Faculty Scholarship

These remarks address the topic of “simple competition policy for a complex world”.[1] There is much to be said in favor of simplicity in legal rules. Complex legal rules are often difficult for the individuals who must comply with the rules to understand what they mean. Complex rules are often confusing, and take a long time to understand, when in the real business world decisions must be made quickly – at the pace at which business occurs. Businessmen do not have the luxury that academics possess to read, discuss, and think about rules for long periods of time. Markets …

Against Monetary Primacy, Yair Listokin, Rory Van Loo

Northwestern University Law Review

To reduce inflation, the Federal Reserve (Fed) raises interest rates. But every month with high interest rates increases the risk of a devastating recession. Recessions impose not only short-term pain in the form of widespread unemployment but also lifelong harm for many, as vulnerable workers and those who start their careers during a downturn never fully recover. Yet hiking interest rates is the centerpiece of U.S. inflation-fighting policy. When inflation is high, the Fed raises interest rates until inflation is tamed, regardless of the consequent sacrifices. We call this inflation-fighting paradigm “monetary primacy.” Despite its great risks, monetary primacy has …

Legal Market Decartelization, Milan Markovic, Nuno Garoupa

Faculty Scholarship

American lawyers’ grip on the legal market is receding. Scholars and policymakers increasingly agree that the public has little to lose and potentially much to gain from legal market decartelization - the weakening of the lawyers’ monopoly over the legal services market. Harkening to deregulatory initiatives abroad and in Arizona and Utah, reformers contend that removing restrictions on the corporate delivery of legal services and unauthorized practice of law will slash costs and expand access to justice.

Drawing on economic theory and recent market developments, this Article offers a cautionary rejoinder. Understandable concerns about cartelization and lawyer rent-seeking have led …

On The Meaning Of Discrimination: Anti-Racism Versus Color-Blind Policy, Keith N. Hylton

Faculty Scholarship

Chief Justice Roberts of the United States Supreme Court has said that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”1 In this Article, I examine what it means to discriminate on the basis of race—or what it means to stop discriminating on the basis of race. I consider interventions designed to enhance social welfare in an economy with racially discriminatory games operating at its base. One set of interventions is color-blind, in the sense that it treats all actors alike regardless of race. The other set of interventions is …

Unpacking Singapore’S Leasehold Relativity Table: An Empirical And Legal Analysis, Koon Shing Kwong, Jing Rong Goh, Seng Wei, Edward Ti

Research Collection School Of Economics

In Singapore, most land is state-owned, with the state generally issuing leasehold estates via state leases of not more than 99 years1, depending on the intended land use. Naturally, the value of a leasehold estate, which erodes over time as the lease approaches the end of its term, is a key component of the premium charged for lease renewals, or the tax imposed for permission given in relation to a development that would increase the value of the land. By law, the state valuation of leasehold land is prescribed by a leasehold relativity table colloquially known as ‘Bala’s Curve’ or …

Biomanipulation, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Scientific and technological advances in the latter part of the twentieth century transformed the field of biometrics. Carleton Simon, for instance, first postulated using retinal vasculature for biometric identification in 1935, but it was not until forty years later that an Eyedentify patent brought the idea to fruition. In 1937, John Henry Wigmore anticipated using oscilloscopes to identify individuals by speech patterns. Decades later, digitization and speech processors made voiceprint identification possible. In the 1970s, biological discoveries similarly led to the development of deoxyribonucleic acid (DNA) sequencing. And while Alphonse Bertillon in the late nineteenth century postulated iris distinctions, it …

Introducing Justice And Rights To Students Of Economics, Mark D. White

Publications and Research

Most economics instruction is focused on outcomes, whether evaluated in terms of individual or collective welfare or well-being. This is consistent with economics’ roots in classical utilitarianism, and no consideration is usually given to the process by which these results obtain, which is a deontological concern of right and wrong. This can seem odd to economics students, especially in the context of trade-offs in which one party is benefited at the expense of another, or aggregate welfare is maximized while some individuals are harmed, with no consideration in either of rights, desert, or justice. This chapter argues for the importance …

Copyright Law And Property Law, Keith N. Hylton

Faculty Scholarship

Property is at the core of state law since it is the exclusive power of the individual state governments to define and protect property rights within their jurisdiction. In this paper I will discuss the general connection between copyright and property generally. I will argue that property law sheds important light on copyright law and can help us cut through modern controversies in copyright law. If I am correct in this view, any judge sufficiently familiar with property law doctrines could do better than the Supreme Court of the United States in resolving a new copyright controversy. Specifically, property law …

No-Hire Rulings Forget Competition, Val Ricks

American University Law Review

Two recent and noted antitrust rulings on the legality of no-hire (or “no-poach”) agreements paid lip service to preserving and promoting competition for employees but in the end failed to apply competition as a standard. Instead—and this is seen only deep in the weeds of the decisions themselves, on careful reading—judges demanded that no-hire agreements be held illegal only when they constitute abuse of market power, more or less. These decisions impliedly distinguish horizontal agreements not to compete for employees from horizontal agreements not to compete for customers, or on price. The opinions tend to “require careful economic analysis” of …

On Guido Calabresi, Roger K. Newman

Touro Law Review

Few individuals have had as long and as influential a career in law as Guido Calabresi. Cofounder of the field of law and economics, teacher, dean, and judge, he has inspired (and infuriated) multitudes. On the United States Court of Appeals for the Second Circuit, where he has served for thirty years (while continuing to teach until recently), his creativity and doctrinal innovations continue apace. He has urged the academy, legislature, and bench alike to engage in continuing conversation to improve the law and its effect upon those to whom it acts. One of these areas is certification—the practice of …

Climate Finance Needs More Market Discipline, Richard Morrison

FIU Law Review

The market for climate and sustainability-driven products and services is potentially very large and thus attractive to many investors and entrepreneurs. However, its current reliance on public subsidies and capital flows is a significant weakness that often goes unacknowledged.

Is Distance From Innovation A Barrier To The Adoption Of Artificial Intelligence?, Jennifer Hunt, Iain Cockburn, James Bessen

Faculty Scholarship

Using our own data on Artificial Intelligence publications merged with Burning Glass vacancy data for 2007-2019, we investigate whether online vacancies for jobs requiring AI skills grow more slowly in U.S. locations farther from pre-2007 AI innovation hotspots. We find that a commuting zone which is an additional 200km (125 miles) from the closest AI hotspot has 17% lower growth in AI jobs’ share of vacancies. This is driven by distance from AI papers rather than AI patents. Distance reduces growth in AI research jobs as well as in jobs adapting AI to new industries, as evidenced by strong effects …

A Second Look: Local Labor Markets And The Impact Of Ban The Box Policies After Criminal Legal Involvement, Benjamin David Pyle

Faculty Scholarship

This paper estimates the impact of labor demand on the employment and recidivism outcomes of released prisoners. Higher labor demand at release generates higher earnings and lower recidivism. Reduced recidivism persists after controlling for the observed labor market outcomes of the returning cohort, suggesting that labor demand impacts crime through channels beyond the direct formal employment of returning prisoners. Difference-in-differences based evidence suggests Ban the Box (BTB) policies delaying when employers can ask about criminal records improve labor market outcomes and lower recidivism for misdemeanor defendants. Evidence for felony defendants and returning prisoners is mixed but suggestive of similar patterns.

Marketing, Other Intangibles, And Output Growth In 61 United States Industries, Leo Sveikauskas, Rachel Soloveichik, Corby Garner, Peter B. Meyer, James Bessen, Matthew Russell

Faculty Scholarship

Experts in the System of National Accounts (SNA) recently considered whether marketing could be included as a capital asset in the national accounts and later recommended that marketing should be an intangible in the 2025 SNA (IMF, 2022, 2023). This paper prepares macroeconomic measures of the United States marketing stock and develops similar measures within 61 industries. We find that, from 1987 to 2020, marketing capital contributed approximately as much to output growth (0.18 percentage point per year) as R&D (0.15) or software (0.19) did. Software grew more rapidly, but marketing had a larger factor share. Marketing contributes even more …

The Failure Of "Quick Look" Analyses Of Antitrust Claims, Jonathan Berman

American University Business Law Review

Before courts can determine whether a defendant may have violated antitrust laws, they must first select the appropriate mode of analysis: the fact-intensive rule of reason, summary condemnation under the per se rules, or a quick look analysis. “Quick look” is intended to shorten and simplify inquiries into conduct that does not fall under the per se rules but that nonetheless has obvious anticompetitive effects.

The quick look doctrine, however, has failed to streamline antitrust litigation, and the related caselaw has failed to develop concrete or usable rules. Despite decades of litigation, the quick look doctrine remains of dubious legal …

Fifa's One Association - One Vote Rule: Does Democratic Governance Ensure Its "Corporate" Integrity?, Ilias Bantekas

American University Business Law Review

This article suggests that in the absence of any requirement in favor of democratic governance of corporations and non-profit entities in national law, as well as in light of a general practice of bifurcated systems (oscillating between de jure equality and power-based governance) in respect of intergovernmental organizations, a nondemocratic governance structure in international sports federations would not deviate from the general rule. What is clearly at stake in complex organizations is effectiveness in achieving the aims of the organization, irrespective if all members are satisfied. The deceptively democratic nature of sporting federations such as FIFA is very much the …

Death, Bankruptcy, And The Public Hospital, Michael A. Francus

Journal Articles

From the Article

This Article expands the purview of bankruptcy scholarship to those government businesses, assessing how Chapter 9 operates for them. It does so by taking public hospitals as a case study, offering a comprehensive look at every public-hospital bankruptcy between 1988 and 2021.

Trial Selection And Estimating Damages Equations, Keith N. Hylton

Faculty Scholarship

Many studies have employed regression analysis with data drawn from court opinions. For example, an analyst might use regression analysis to determine the factors that explain the size of damages awards or the factors that determine the probability that the plaintiff will prevail at trial or on appeal. However, the full potential of multiple regression analysis in legal research has not been realized, largely because of the sample selection problem. We propose a method for controlling for sample selection bias using data from court opinions.

The Chicago School’S Coasean Incoherence, Madison Condon

Faculty Scholarship

This comment traces the divergent legal academic interpretations of the Chicago School's Ronald Coase and where their influence lands--revealing the law’s inconsistent conception of just what a corporation is or should be. By following Alyssa Battistoni's investigation of the origin of the "externality," we can see the late 60s and early 1970s as a pivotal era. People were waking up to the collective costs of industrialization and pushing back against corporate power. Against this democratic wave, the writings of the Chicago School worked to separate one human person into her different roles in the economy—consumer, worker, shareholder. They used the …

Fiscal Equity: The Non-Profit Model Of Corporate Ownership, Eric A. San Juan

American University Business Law Review

In an era of excessive executive compensation, the non-profit corporation serves as an exemplary alternative. Voluntarily, some brand-name manufacturers operate under existing law that permits non-profit ownership. Virtually all corporations could become non-profits under a legislative reform potentially more effective than past redistributive measures. Twentieth-century progressive taxation has waned, while initiatives to endow impoverished children with personal accounts have not expanded beyond pilot programs. Instead, economic inequality widens with global industrialization. Traditionally, deprivation led to the call for the abolition of private ownership of the means of production, yet this proved impracticable under revolutionary regimes. A review of the evolution …

Rediscovering Adam Smith: An Inquiry In The Rule Of Law, Competition, And The Future Of The Federal Trade Comission, Melissa Holyoak, Christopher G. Mufarrige

American University Business Law Review

It is my privilege to be here to celebrate the 40th anniversary of the Competitive Enterprise Institute (³CEI´), along with the 300th birthday of Adam Smith. For decades, CEI has been at the vanguard of free-market advocacy, and it is wonderful to combine CEI's anniversary with a celebration of Adam Smith. I will start with a standard disclaimer: The views I express today are my own. They do not necessarily represent those of the Federal Trade Commission (FTC or ³Commission´) or any other commissioner.

If You Can't Beat Them, Join Them: Richard Posner And Behavioral Law And Economics, Avishalom Tor, Doran Teichman, Eyal Zamir

Journal Articles

Since its publication in 1973, Economic Analysis of Law (the Treatise) by Richard Posner has been recognized as the canonical treatise in the field. Given this status, observing changes over time in the different editions of the book can highlight substantial and methodological shifts in the area. On this backdrop, this brief essay will highlight Posner's change of attitude towards behavioral analysis of law over the years, culminating with the incorporation of behavioral insights into the las edition of this book, published in 2024.

The Samuels-Buchanan Correspondence And The Lost Opportunity For A Positive Public Choice Scholarship, Luke Petach

Faculty Scholarship

This article revisits the debate between James Buchanan and Warren Samuels over Miller v. Schoene (1928). The initial court case—concerning the rights of government in the face of conflicting private interests—and subsequent debate between Buchanan and Samuels have important implications for the interrelations between legal and economic processes, the difference between a normative and positive theory of public choice, and the nature of public choice more generally. In published papers and private correspondence, the writings of Samuels reveal an alternative conception of public choice theory as a positive endeavor divorced from the free market normative implications of Buchanan’s work. Application …